1. ' SHAFIUR RAHMAN, J.--Hereunder are the reasons for our short order announced in Constitutional Petition No,2-R/1988 and Constitutional Petition No,7-R of 1988, on 2nd of October, 17988:- ' Mrs. Benazir Bhutto, Co-Chairperson, Pakistan People's Party, instituted a Constitutional Petition under Article 184(3) of the Constitution soon after having succeeded in an earlier case (Constitutional Petition No,2-R of 1987 titled Benazir Bhutto versus Federation of Pakistan (PLD 1988 SC 416), decided on 20-6-1988). Her contention was that the Supreme Court has already held in that judgment that the citizens of Pakistan enjoy Fundamental Right not only of forming a Political Party but also of its functioning as such. This right necessarily extends to its participation at all the stages of the constitutional process of elections culminating in the formation of the Government in a parliamentary system. There was, according to the Petitioner, a positive indication in the statements given at the highest level that this right was likely to be seriously curtailed as the elections were envisaged on a non-party basis, the date of which had been announced as 16th of November, 1988. The prayer made in the petition was in the following words: - "That in the circumstances petitioner seeks enforcement of the fundamental right guaranteed to the political parties under Article 17(2) of the Constitution and prays that the amended section 21(1)
(b) of Representation of the People Act, 1976 in so far as it provides for allocation of symbols to each candidate by draw of lots be declared void and the respondents be directed to hold the election on 16-11-1988 on party basis that is: ' That every political party shall be eligible to participate in election to every seat in the Houses of Parliament or Provincial Assemblies and to nominate and put up candidates at any such election under party manifesto, party ticket, party flag and party symbol and under the discipline of the political party nominating the candidates.
2. ' Notwithstanding any other law for the time being in force or which may come into force hereafter in so far as such law denies, abridges or interferes, with the exercise of the Fundamental Right 17(2) by the political ' parties."
3. ' The specific provision of, law which was challenged for claiming this relief was section 21(1)(b) of the Representation of the People Act, 1976 (hereinafter referred to as the Act) in the following words:- "That as a result of the aforesaid judgment, the amended section 21(1)(b) of the Representation of the People Act, 1976 has, in so far as it provides for allocation of symbols to each candidate by draw of lots, becomes void being in conflict with the Fundamental Right 17(2), as interpreted by this august Court."
4. ' An application was subsequently filed by the petitioner for permission to take up additional pleas.
5. One of the additional grounds taken up was that section 12 of the Act in so far as it provided the requirement of 50 proposers putting their signatures on the Nomination Paper is violative of Article 17 of the Constitution and for that reason be struck off.
6. ' The other Constitutional Petition (Constitutional Petition No,7-R /1988) has been filed by Mr. M.D.
7. Tahir, an Advocate. This Petition also refers to the decision in the earlier Petition Benazir Bhutto v.
8. Federation of Pakistan (PLD 1988 SC 416) and relies upon it for contending that section 21(1)(b) of the Act is in conflict with Article 17 of the Constitution and for that reason void.
9. ' In the written statement the Federation has taken the objection that the Constitutional Petition under Article 184(3) is not maintainable because no Fundamental Right of the individual citizens as such is in jeopardy and freedom to join any political party remains unaffected. On the controversial question it is stated that "the Constitution does not confer any Fundamental Right in respect of grant of symbols. Symbols are allocated in accordance with law which, exists and the said law is not ultra vires the Constitution". Section,21(4)(b) of the Act was, according to the respondent- Federation, not in any manner repugnant to Article 17(2) or any other provision of the Constitution.
10. ' Mr. Yahya Bakhtiar, Advocate the-"learned counsel for the Petitioner in Constitutional Petition No,2- R of 1988 at the outset made it clear that he was not pressing the additional ground 'relatable to section 12 of the Act whereby fifty voters are required to sign the proposal form because he had received an assurance from the appropriate quarters that that grievance was being attended to.
11. ' Mr. Yahya Bakhtiar submitted that Political Party symbols have an invaluable role in a predominantly illiterate society, in identifying the candidates, in identifying the issues and in facilitating the casting of the vote. He referred to us to three decisions from the Indian jurisdiction namely, Samyukta Socialist Party v. The Election Commission of India and another (AIR 1967 SC 898), Sadiq All and another v. The Election Commission of India, New Delhi and others, (AIR 1972 SC 187) and All Party Hill Leaders' Conference, Shillong v. Captain W.A. Sangma and others (AIR 1977 SC 2155) to emphasise these aspects.
12. ' In the first case he pointedly referred to the observation of the Court that "Owing to the inability of a vast majority of voters to read or mark a ballot, a system of allotment of symbols has to be employed", and further that "Political Parties set great store by their reserved symbols probably because the symbol gets identified with the Party and helps it in maintaining election appeals and propaganda", and finally that "the importance of the symbols to our system of elections needs no exaggeration. Symbols are its very soul and without them the exercise of franchise by the majority of our citizens would be impossible. No doubt elections are fought on party lines but even if there is a plebiscite between parties, the symbols play a key role by identifying the parties. Slogans, placards, appeals all invoke the symbols and not the candidates. In fact, the voters are asked to vote for this symbol or that symbol."
13. ' In the second case the learned counsel referred to the rationale of the symbol system in the elections which was expressed in para 18 of the reported judgment in the following words:- "It is well known that overwhelming majority of the electorate are illiterate. It was realised that in view of the handicap of illiteracy, it might not be possible for the illiterate voters to cast their votes in favour of the candidate of their choice unless there was some pictorial representation on the ballot paper itself whereby such voters might identify the candidate of their choice. Symbols were accordingly brought into use. Symbols or emblems are not a peculiar feature of the election law of India. In some countries, details in the form of letters of alphabet or numbers are added against the name of each candidate while in others, resort is made to symbols or emblems. The object is to ensure that the process of election is as genuine and fair as possible and that no elector should suffer from any handicap in casting his vote in favour of a candidate of his choice. Although the purpose which accounts for the origin of symbols was of a limited character, the symbol of each political party with the passage of time acquired' a great value because the bulk of the electorate associated the political party at the time of elections with its symbol. It is, therefore, no wonder that in case of a split in a political party, there is a keen contest by each rival group to get the symbol of that party."
14. ' The reasons for the allotment of symbols in any election process were also explained in the third reported case, referred to by the learned counsel, in the following words: "For the purpose of holding elections, allotment of symbol will find a prime place in a country where illiteracy is still very high. It has been found from experience that symbol as a device for casting votes in favour of a candidate of one's choice has proved an invaluable aid. Apart from this, just as people develop a sense of honour, glory and patriotic pride for a flag of one's country, similarly great fervour and emotions are generated for a symbol representing a political party. This is particularly so in a parliamentary democracy which is conducted on party lines. People after a time identify, themselves with the symbol and the flag. These are great unifying insignia which cannot all of sudden be effaced."
15. ' The learned counsel for the Petitioner also pointed out that though section 21 now impugned has been amended twice, the Representation of the People (Conduct of Election) Rules, 1977 (hereinafter referred to as the Rules) has been left unamended. This explains why sub-rule (2) of rule 9 still authorises the Commission to "allot any one of the symbols specified in sub-rule (1) to any political party or a combination of two or more political parties who have agreed to put up joint candidates for election on an application made by it in this behalf". This rule, according to the learned counsel for the Petitioner, is in direct conflict with section 21 of the Act where the Returning Officer has a statutory duty in case of a contested election to allot the symbols by drawing of lots.
16. ' Mr. Ali Ahmed Fazeel, Senior Advocate, amicus curiae in this case contended that in the earlier case of Mrs. Benazir Bhutto, he had taken up the plea that the formation of a Political Party was a fundamental right no doubt but there was no fundamental right of a Political Party to participate in the Election. This view was rejected by the Court. He, therefore, considers that thereafter the claim to allotment of a symbol in an Election is a right of the Political Party and in so far as section 21(1)(b) denies such a right, or omits to recognize this, it is violative of the Fundamental Right.
17. ' Mr. S.M. Zafar, Senior Advocate, another amicus curiae contended that the accepted meaning of 'Election' is the entire process starting with the publication of the electoral roll to the date of declaration of the result and the allocation of symbols would certainly be a part of the Election process. He also contended that in certain situations the Political Parties may be acting as an agent of the candidate advancing the cause of the candidate and for this he relied on Halsbury's Laws of England, 4th Edition Volume 15, para 702, providing as hereunder:- "There may, on the other hand, be a political association advocating the views of a candidate of which that candidate is not a member, to the funds of which he does not subscribe, and with which he personally is not ostensibly connected, but at the same time in intimate relationship with his agents, respecting the canvassing of voters, and the conduct of the election, and largely contributing to the result. Such an association could be held to be one for whose acts the candidate was responsible."
18. ' He also considers that the omission of Section 21 of the Act to take note of the Political Parties and to ensure their participation in the allocation of symbols amounts to violation of a fundamental right enshrined in the Constitution.
19. ' Mr. Aziz A.Munshi, the learned Attorney-General for Pakistan on the other hand contended that the right of a Political Party to claim a symbol or any particular symbol is not guaranteed either expressly or by implication by any of the fundamental rights or the statutory provisions. In the absence of such a guarantee or provision by reference to which the right can be claimed or enforced, a Petition under Article 184(3) is not competent. The right of 'the individual to contest an Election and to get a symbol, has been duly recognized and admits of no doubt or curtailment as such. It has also been contended that on account of the existence of rule 9 referred to and the view taken by this Court with regard to the scope of Article 17(2) there would appear to be no inconsistency at all and section 21 should be interpreted and applied consistently with these two provisions.
20. ' In the earlier judgment by reference to which these Petitions have been filed, the Fundamental Right of a citizen to form a Political Party and of a Political Party to participate in the process of Election, was recognized in unqualified words as would appear from the following observations contained in the judgment of my Lord the Chief Justice:- "Reading Article 17(2) of the Constitution as a whole it not only guarantees the right to form or be a member of a political party but also to operate as a political party. As earlier held, the words "right to form" are not only confined to its formation but to its function as a political party. The political party, according to its texture, of being an aggregate of citizens composing the party can exercise the other rights guaranteed under the Constitution like an individual citizen. Again the forming of a political party necessarily implies the carrying on of alt its activities as otherwise the formation itself would be of no consequence. In other words the functioning is implicit in the formation of the party. (See the opinions of B.Z. Kaikaus, J. And. Cornelius, C.J.,, in Abul A'la Maudoodi's case). This being so, the Political Parties Act not being a higher law than the Fundamental Right itself, cannot override or prevail over or be superimposed to make the right operational. The functioning is also explicit from the limitation itself which makes prejudicial activities against sovereignty and integrity of Pakistan actionable."
21. ' The importance of the right of the Political Party to participate in the Elections was further emphasised in the following words:-- "I have earlier dealt with the importance of the political party and its role for providing leadership for public offices through elections. If the political party is disabled to participate in an election it loses its political texture and to all intents and purposes it will suffer extermination or in other words its functioning as a political party will come to an end. If this be so then the result will not be different from dissolution as provided in section 6 of the Act."
22. ' Even earlier, in the case Saiyyid Abul A'la Maudoodi and 2 others versus the Government of West Pakistan and another PLD 1964 SC 673 such a contention, as is being advanced by the learned Attorney-General, was fully dealt with and the right of a citizen was not confined to the mere formation of a political party but was held to extend necessarily to the functioning of a Political Party. It is true as pointed out by the learned Attorney-General, rule 9 of the Rules recognizes the Political Parties, their right to participate in the Elections and their right to claim a symbol independently of the candidate. This rule, however, is necessarily in the statutory scheme of things controlled and subordinated by section 21 of the Act which show no such recognition, provides no such right and creates no such entitlement as has been taken care of in Rule 9. Besides, the Returning Officer has been left with no discretion and is, not even controlled by the directions of the Chief Election Commissioner or the Election Commission in the matter of performing his duties, tinder section 21. This is a clear departure from the earlier Scheme of Section 21 and what rule 9 takes care of to preserve is obliterated by section 21. This obvious repugnancy between Section 21 and rule 9(2) must on the established principles of interpretation be resolved in favour of section 21.
23. The only explanation for the existence of rule 9 in the form in which it exists appears to be that it has not kept pace with the amendments made in section 21 by Ordinances II and VIII of 1985.
24. ' Our conclusion therefore, is that section 21 of the Act as amended by Ordinances Nos. II and VIII of 1985, is violative of Fundamental Right contained in Article 17(2) of the Constitution in so far as it fails to recognize the existence and participation of the Political Parties in the process of elections, particularly in the matter of allocation of symbols and is for that reason void to that extent. Every Political Party is eligible to participate in the Elections to every seat in the National and the Provincial Assemblies scheduled to be held on the 16th of November, 1988. The Political Parties shall be entitled to avail of the provisions of sub-rule (2) of rule 9 of the Rules to seek allotment of any of the prescribed symbols. Both the Petitions are allowed in these terms leaving the parties to bear their own costs. Federal Government shall pay a fee of Rs,5,000 each to two amici curiae Mr. Ali Ahmed Fazeel and Mr. S.M.Zafar.
25. ' NASIM HASAN SHAH, J.--I agree and am adding a short concurring note.
26. ' I agree with my learned brother Shafiur Rahman, J. And may perhaps usefully add that "the right to form or be a member of a political party" guaranteed under article 17(2) of the Constitution includes the right to contest and participate in the elections. The observations of my Lord the Chief Justice in Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 916 have been cited in support of this view. I too took the same view observing (at page 566 of the Report) as follows: "In this connection, according to the petitioner, her fundamental right to form a Political Party [conferred under Article 17(2)] is frustrated as her political party, the P.P.P. Not being a registered party is prevented from functioning and participating in the elections as a party. However, according to the other side, the right conferred under Article 17(2) is only to form a political party or to be its member and that none of the impugned provisions of the Political Parties Act, 1962, places any restriction on the petitioner from forming a political party or from being its member. So far as participation in the elections is concerned, even if her Party is not registered she would be entitled to vote at the elections and can also stand in the elections in her personal capacity.
27. ' I cannot agree with the learned Attorney-General. The term "right to form" a Party not only merely means the right to form or start an association, but includes therein the right of continuing it. The word "form" is not confined only to the initial formation of an association but also implies its continuation, namely, that the association shall have the right to continue its activities and propagate its political opinions without any restriction " including, I might add, the right to contest elections as an association i.e, as a Political Party.
28. Given this right, the question is whether the Political Party also has a right to obtain a symbol to identify its candidates at the elections? Now, since this Court has held that elections may take place on party-basis, the participants therein, in our milieu, are indentified not merely by their names or the names of their parties but in a larger measure by their party flag and by their party symbols. The latter elements are as important, if not more important, as the name of the candidate himself. It is for this reason that the Representation of the People (Conduct of Election) Rules, 1977, had provided in sub-rule (2) of Rule 9 thereof that: "The Commission may allot any one of the symbols specified in sub-rule (1) of any Political Party (or a combination of two or more Political Parties) who have agreed to put up joint candidates for election on an application made by it in this behalf."
29. ' However, in the main Statute itself, namely, the Representation of the People Act, 1976, by the amendments made in Section 21 therein in 1985-- which paved the way for non-party elections-- this right was taken away from the Political Parties and Section 21 couched as follows:-- "21. Contested election and allocation of symbols:
(1) If there are more contesting candidates than one in respect of a constituency, the Returning Officer shall-
(a) prepare a list of contesting candidates in which their names shall be arranged in the alphabetical order of the Urdu language;
(b) allocate one of the prescribed symbols to each contesting candidate by drawing of lots; and ' According to the terms of Section 21, reproduced above only contesting candidates can be allotted symbols and no reference is contained herein to allocation of a symbol to a political party, as is the case in Rule 9(2) aforecited. Since political parties were disabled from obtaining a common symbol for their candidates by this section the petitioner herein moved this petition seeking declaration that section 21 is void on account of its inconsistency with the Fundamental Right of freedom of association conferred by Article 17(2) of the Constitution. In support of this petition it was submitted that Section 21 as it now stands, debars a political party to obtain a symbol and is as such inconsistent with the Fundamental Right conferred by Article 17(2) of the Constitution whereby every citizen has been given "the right to form or to be a member of a political party" which right comprises the right to participate in and contest an election. There is force in this submission.
30. ' The term "election" is a comprehensive term and includes all the stages of the election commencing from the calling of the electorate to vote until the declaration and notification of the final result. Obviously casting of votes for the candidates is the most important stage in the process of elections. Now while Rule 9 of the Rules permits a political party to obtain a common symbol to facilitate the voter to identify his party candidate, section 21 of the Act omits to recognize this right. But this Court has found that elections may be held on party basis in every constituency by virtue of the Fundamental Right conferred on the citizens of this country by Article 17(2) of the Constitution. Thus an inconsistency exists between Section 21 of the Act and the Fundamental Right aforesaid. Section 21, as it now stands, is neither cognisant of the existence of political parties nor accords any recognition to them. Indeed the failure therein to make any provision for allocation of any symbol to a political party, which alone can enable it to effectively participate in the process of elections, renders nugatory the right to form a political party and accomplish its objectives, namely, to organise and fight an election with a view to capturing political power. Accordingly, I agree with my learned brother Shafiur ,Rahman, J. That Section 21 is violative of the Fundamental Right contained in Article 17(2) and is void to the extent indicated by him. The petition, accordingly, must succeed.
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